Employee insubordination, dismissal

a direct order from a superior or the employee and superior have a confrontation.
Insubordination has steep consequences, because the employee is essentially
breaching his employment contract, refusing to work for the organisation. Officially,
insubordination results when an employee has received and understood a direct order,
but refuses to obey. Either the employee has made an explicit statement of refusal or
simply did not complete the task.
Even if the employee thinks the order is unfair or improper, it’s still his responsibility
to comply or find appropriate means to have it resolved and non-compliance is not
part of the remedies.
Insubordination may be described as resistance to or defiance of authority,
disobedience, refusal or failure to obey reasonable and lawful instructions. The
characteristics present in insubordination would be a willful, verbal refusal of
instructions, willful disregard of management authority, disrespect, rudeness,
rebelliousness or disobedient gestures, dismissive gestures, walking away, abusive
language and addressing the senior manager or director or supervisor in a
disrespectful manner. Every employee not only has the duty to come to work and be
on time and so on, but also the duty to obey all reasonable and lawful instructions.
In other words, to do as he is told, within the parameters of what is accepted as being
a reasonable and lawful instruction, because this really is at the heart of
“insubordination”. Quite obviously, any instruction that can be carried out without
breaking any statute, common law or company policy is regarded as “a lawful
instruction”. However, for the instruction to be reasonable, there are other elements
required. An instruction can quite easily be lawful, but at the same time it can be
unreasonable.
The instruction must be capable of performance — employee must have the necessary
knowledge, skill, capability and ability to carry out the instruction. Instructing an
employee to do something that he clearly cannot do is unfair and unreasonable. The
instruction must fall within the ambit of the job — it is not always clear whether or not
a particular task falls within the parameters of an employee’s job description, when
not specifically stated therein. For example, is it the job of the managing director’s
secretary to make his tea for him? So it is a question of reasonable and rational
judgment that must be applied here. Also to consider is the question of whether the
task in question is merely a “once-off” thing, or is it likely to become a permanent
element of that employee’s job description. Perhaps the best approach in those “once-
off” situations is to use a bit of the old psychology — do not instruct but ask.
There are as many reasons for refusing to obey an instruction, as there are
instructions. One of the most common reasons for refusal is “it is not in my job
description”. A job description, by definition and implication, is a written description
of those tasks that the employee is expected to do. However, in practice it is accepted
that it is impossible to include in a job description a full description of every task that
the employee must attend to.
It follows as a consequence that some tasks are written into the job description by
implication or the tasks are not stated by means of the written word, but they are
stated “between the lines”. Some common excuses are “he is not my boss (or
supervisor) therefore he has no right to tell me what to do”. Counsel the employee —
explain to him who can and who cannot issue instructions and note the counselling
session in his file. Any recurrence will call for a written warning and a third instance
perhaps a final written warning or even dismissal. “I cannot do it because it will
require me to work overtime” — generally speaking, overtime is voluntary.
However, it may be a crisis situation and every employee has the duty to protect his
employer’s interests, and refusing to do so for no other reason than that it would
require him to work overtime is unacceptable, disciplinary action would follow.
Unreasonable refusal to help in an emergency is an offence, but don’t call it an
emergency when it isn’t.
The instruction must not relate to an activity foreign to the type of duties the
employee is employed to perform — that is to say the instruction must not be one
which does not appertain to the character or capacity of contract of employment. With
reference to Zupco v Mabhande and Anor 1998(2) ZLR 150, case, the omnibus drivers
in the employ of the appellant (Zupco) embarked on a period of go-slow. While the
industrial action was still in progress, the respondents (Mabhande and another) who
were employed by the appellant as drivers’ instructors were ordered to drive
passengers for hire. Both declined to comply with the order. Letters of suspension
were served upon them three days later and the appellant applied to the Ministry of
Labour for permission to terminate the respondents contracts of employment on the
ground that they had willfully disobeyed a lawful order.
This was in contravention of Section 3(1) of the Labour Relations (General Conditions
of Employment) — Termination of Employment Regulations SI 371 of 1985. The court
held that driving of buses for conveyance of fare-paying passengers was an activity
foreign to the type of duties the respondents were employed to perform which was to
train new employees to drive buses. When they were promoted to become instructors
the capacity in which they were employed was changed. It mattered not that they
retained the ability and skill to drive buses. The appellant also failed on its second
ground of appeal that the go-slow engaged by its drivers justified the respondents to
“perform this emergency work” of driving fare-paying passengers. In other words,
they could not be required to perform work which fell outside the scope of their
contracts of employment.
In another case, Sirdar Manufacturers (Pvt) v Esnath Chiuya (SC192/97), the
employee sought to protest against poor working conditions by refusing to obey a
lawful order. The court held that there were proper ways of protesting about working
conditions and disobeying orders was not one of them. Exhibition of passive
resistance to instructions given may also be construed to be breach of the duty of
subordination.
In Air Products (Pty) Ltd v CWIU and Anor (South Africa) the employee concerned
refused to accept a transfer from one plant to another because he would be required to
work nightshifts and did not wish to do so for “personal reasons”. The court ruled that
as the proposed transfer did not entail different work and because it was not a term of
the employee’s contract that he would perform only day work, his refusal to move
amounted to gross insubordination that justified dismissal. It therefore follows that
an employee is under no obligation to obey or carry out an unlawful instruction.
Refusal by an employee to obey a lawful order from the employer makes him liable for
willful disobedience to a lawful order and will be guilty of misconduct punishable by
dismissal.
Disclaimer: I do accept no liability for any damages or losses suffered as a result of
actions taken based on information contained herein. The information contained
herein does not serve as alternative to legal advice.

Taurai Musakaruka is Human Resources Practitioner. Feedback e-

mail:tmusakaruka@gmail.com or tauraimusakaruka@yahoo.com

The level of disobedience should be sufficiently serious and deliberate or if the

employee disobeys in an insolent manner. In other words the disobedience must
evince an intention no longer to be bound by the contract and simply not an
unconsidered reaction in a moment of excitement.
Insubordination must be serious, persistent and deliberate and the employer should
adduce proof that the employee was in fact guilty of defying an instruction.
Disclaimer: I do accept no liability for any damages or losses suffered as a result of
actions taken based on information contained herein. The information contained
herein does not serve as alternative to legal advice.